The U.S. Securities and Exchange Commission (SEC) published on Dec. 17 Frequently Asked Questions Relating to crypto asset activities and distributed ledger technology from the Division of Trading and Markets. The FAQs followed the publication of the Division’s staff guidance addressing crypto asset activities and outlined regulatory interpretations across custody, trading, and market infrastructure.

The document provides staff responses explaining how existing federal securities laws apply to crypto asset securities and, in limited circumstances, to the activities of regulated entities involving non-security crypto assets. It emphasizes that the responses reflect the views of the Division of Trading and Markets staff, are not rules or statements of the SEC, and have no legal force or effect. The staff clarified capital and custody expectations for broker-dealers involved with crypto exchange-traded products (ETPs), explaining:

Broker-dealers taking proprietary positions in the assets underlying an ETP would need to account for those assets as part of their net capital calculations. The staff will not object if a broker-dealer treats a proprietary position in bitcoin or ether as being readily marketable for purposes of determining whether the 20% haircut applicable to commodities under Appendix B of Rule 15c3-1 applies.

Elsewhere, the FAQs detail how Rule 15c3-3 applies only to securities, leaving non-security crypto assets outside core customer protection provisions, including coverage under the Securities Investor Protection Act. The staff also reiterated that compliance with the special purpose broker-dealer custody framework remains optional and emphasized that crypto asset securities may be held without certificated form when otherwise meeting control requirements.

Read more: SEC Pushes Regulatory Progress With Broker-Dealer Crypto Custody Clarity

Beyond custody and capital, the FAQs address operational and recordkeeping issues across crypto market infrastructure. The staff emphasized the importance of books and records for firms engaged in non-security crypto activity, noting:

In the staff’s view, a broker-dealer that conducts a non-security crypto asset business could make and keep the same records for its non-security crypto activities as it does for its securities activities.

The document also analyzes when service providers for crypto asset securities must register as transfer agents and confirms that distributed ledger technology may serve as an official master securityholder file if all safeguarding, reporting, and retention requirements are met. Additional sections explain how national securities exchanges and alternative trading systems may facilitate pairs trading involving security and non-security crypto assets, provided Regulation ATS and Regulation NMS obligations are satisfied. The FAQs further outline Form ATS and Form ATS-N disclosure expectations, clarify when clearing agency registration is not required for ATS operators, and extend prior Regulation M no-action relief principles to crypto ETPs, while reaffirming that anti-fraud and anti-manipulation provisions of the federal securities laws continue to apply.

• What did the SEC clarify about broker-dealer custody of crypto assets?
  The SEC staff said custody rules apply only to securities, leaving non-security crypto assets outside Rule 15c3-3 protections.
• How does the SEC treat bitcoin and ether for net capital calculations?
  The staff will not object to broker-dealers treating bitcoin or ether as readily marketable for net capital purposes.
• Are broker-dealers required to follow the special purpose crypto custody framework?
  The SEC staff reiterated that participation in the special purpose broker-dealer custody framework remains optional.
• Can distributed ledger technology serve as an official securities record?
  Yes, the SEC staff said DLT may be used as a master securityholder file if all regulatory requirements are met.

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